Judge Laura A. Seigle, Case 19STCV41649 2023-02-02 Tentative Ruling

Judge: Laura A. Seigle, Case: 19STCV41649, Date: 2023-02-02 Tentative Ruling

Case Number: 19STCV41649 Hearing Date: February 2, 2023 Dept: 15

[TENATIVE] ORDER RE MOTION TO CONTINUE TRIAL AND MOTION TO COMPEL

Defendant DAP Products, Inc. seeks to compel the production of documents from the Veteran’s Benefits Administration (“VBA”) as well as bankruptcy trust documents. Defendant also seeks to continue the trial date to allow this discovery.

A. VBA Documents

Defendant states Plaintiffs were willing to sign an authorization for the VBA to produce documents but there is not enough time before trial to obtain the documents from the VBA. Defendant argues the documents are relevant because they will reveal whether Plaintiff was exposed to asbestos while serving in the Navy. Defendant contends that the prior authorization form that Plaintiffs signed was a Veteran’s Administration (“VA”) form, not a VBA form, and that the VBA form seeks information different from the information sought in the VA form.

Plaintiffs argue that in negotiating the July 8, 2022 CMO and its attachments, the plaintiffs and defense bar agreed to the wording of the Department of Veterans Affairs’ authorization form VA Form 3288. Plaintiffs contend that the point of the July 8, 2022 CMO and its attachments is to manage asbestos cases so that the language in authorizations do not need to be negotiated for every case. Plaintiffs contend that they did not agree to sign a re-worded authorization form. Rather Plaintiffs’ counsel thought Defendant had not received VA Form 3288, and Plaintiffs’ counsel was agreeing to sign VA Form 3288 with the standard authorized language.

Appendix C to the July 8, 2022 CMO contains the authorization for Veterans Affairs records. Page C-21 of Appendix C is VA Form 3288 with the approved authorization language. Defendant seeks to change this language in VA Form 3288. (Empting Decl., Ex. 6.) Thus, contrary to Defendant’s suggestion that it is seeks authorization for a different agency (the VBA) using a different form (a VBA form), Defendant actually seeks to use VA Form 3288 to obtain documents from the Department of Veterans Affairs. Appendix C sets out the pre-approved authorization language for VA Form 3288. Defendant did not show good cause to change that pre-approved language. As explained in Appendix C, the pre-approved authorizations are necessary to avoid placing unnecessary burdens on the court and parties, keep costs reasonable, and further the orderly conduct and management of asbestos litigation. (July 8, 2022 CMO at p. C-2.) Permitting parties to revise the language of the authorization forms will dramatically increase the cost of discovery and the number of discovery motions in asbestos cases and delay resolution of these cases.

If Defendant believes the approved language for VA Form 3288 in Appendix C should be revised, Defendant may contact the representatives of the standing discovery committee who meet with the court to suggest solutions to discovery issues that commonly arise in asbestos litigation.

The motion to compel production of additional documents from the Department of Veterans Affairs beyond those in the pre-approved authorization VA Form 3288 is DENIED.

B. Bankruptcy Trust Documents

Defendant contends Plaintiffs did not produce all bankruptcy trust documents, in particular “all settlement releases signed by Plaintiff Beth Payne and all other bankruptcy submissions such as declarations from third parties.” (Motion at p. 3.) Plaintiffs state they produced the documents required under the CMO and that the CMO does not require production of releases and payments.

Appendix D to the July 8, 2022 CMO describes the bankruptcy trust documents to be produced. (July 8, 2022 CMO, Appendix D at pp. D-2 to D-3.) It states “Plaintiffs shall produce all documents sent to, received from, shown to, exchanged with, or otherwise disclosed to any established or pending asbestos trust funds . . . for any purpose . . . .” (Id. at p. D-2.) The pre-approved “Authorization for Release of Records of Asbestos Bankruptcy Trusts and Claims Resolution Facilities” authorizes the production of “all documents or information relating to any and all offers or payments made on the foregoing claim by the TRUST.” (Id. at p. D-54.) These categories of documents include releases and payment information. Appendix D does not state that releases and payment information are excluded from the production of bankruptcy trust documents by plaintiffs or trusts. Of course, the fact that information may be discoverable does not mean that it is admissible at trial.

The motion to compel the production of all documents described at pages D-2 to D-3 of Appendix D of the July 8, 2022 CMO is GRANTED. Plaintiffs shall produce responsive documents within 15 days of the date of this order.

C. Motion to Continue Trial

Defendant filed a motion to continue the trial date six months to allow it to obtain discovery from the VBA. The motion also raised an issue about lost samples, but the parties have resolved that issue. Plaintiffs did not oppose the motion.

As discussed above, the motion to revise VA Form 3288 is denied and therefore a trial continuance is not necessary to allow that discovery. However, at the informal discovery conference defense counsel stated she would be unavailable for a time for health reasons. The parties are to meet and confer on a reasonable continuance of the trial date to accommodate defense counsel.

The motion to continue the trial is GRANTED.

The moving party is to give notice.